HIGH CHIEF IKECHI EMENIKE  & 1ORS VS. ALL PROGRESSIVE CONGRESS (APC), JUDGEMENT DELIVERED BY  UWANI MUSA ABBA AJI, JSC IN SC/CV/1252/2023

SC/CV/1252/2023

JUDGMENT
(Delivered by UWANI MUSA ABBA AJI, JSC)

The first Appellants petitioner was sponsored by his party, the second appellant and petitioner of All Progressive Congress (APC) to contest the Governorship Election of Abia State held on the 18th day of March, 2023. The first Respondent, Independent National Electoral Commission (INEC), conducted the election. The second Respondent, Labour Party, sponsored its candidate, the third Respondent, Dr Alex Chioma-Oti. The fourth respondent, People’s Democratic Party, sponsored its candidate the fifth Respondent, Ambrose Okechukwu Ahiwe. While the sixth Respondent, Young Progressive Party (YPP),  sponsored its candidate, the seventh Respondent, Hon. Enyinaya Nwafor.  There were 15 other political parties and their respective candidates that also participated in the election of the 18th day of March, 2023. At the conclusion of the election, the first Respondent (INEC), returned the third Respondent as duly elected with majority of lawful vote cast at the election. The Appellants, who came fourth in the election with 24,091 votes felt aggrieved with the declaration of the third Respondent as winner of the election by the first Respondent and challenged the declaration by filing a petition at the Registry of Tribunal on the 11th day of April, 2023, on two grounds. The hearing of petition started on the 25th day of July 2023, with the petitioners calling three witnesses, two of whom were subpoenaed witnesses. The first Respondent did not call any witness. The second and third Respondents called only one witness, so also the fourth and fifth Respondents. The sixth and seventh Respondents did not call any witness to testify. The tribunal delivered its judgments on the 6th day of October, 2023, where it upheld the objections of the Respondents that it lacked jurisdiction to inquire into nomination and memberships of the second Respondent and that Petitioners/Appellants lacked the locus standi to challenge same. It equally held that the Appellants failed to prove their second ground of the Petition to wit: that the third Respondent was not elected with majority of lawful votes cast at the Governorship Election held on the 18th day of March 2023, having failed to lead evidence on same. On appeal, The Court of Appeal after on the 15th day of November 2023 delivered its decision on 2nd December, 2023, dismissing the appeal and awarding 1,000,000 against the Appellants. Still dissatisfied, the Appellants have approached this court on appeal.

    In accordance with practice direction of this court, the parties have exchanged their briefs of arguments with the replies thereof. Abubakar  Malami, SAN, the leading-learned silk to the Appellants filed the brief of argument on 24/12/2023, distilled these issues for determination:

1. Was the lower court’s treatment of Appellants’ appeal on the threshold issue of competence that is, Locus Standi is correct.
2. Did the Court of Appeal rightly endorse the trial tribunal’s finding that the 1st, 6th and 7th Respondents did not abandon their pleadings by not calling evidence? 3. Did the Court of Appeal rightly endorse the trial tribunal’s rejection of exhibits P14 and P14A on the grounds that these exhibits had been ‘dumped’ on the trial tribunal?
3. Was the Court of Appeal right to conclude that the Petitioners did not establish that the 3rd, 5th, and 7th Respondents were not qualified to contest the election of 18/3/2023, under reference in this case?

 Mrs. J.O. Adesina, leading the first Respondent’s legal team, filed their brief of argument on 5th January, 2024, wherein these issues were nominated for termination of this appeal:

1. Was the lower Court right to have declined and ignored the four interlocutory appeals referring to them as cosmetics in spite of the holdings therein.

2. Was the lower Court right to have upheld the decision of the Tribunal that the 1st, 6th and 7th Respondents did not abandon their pleadings.

3. Was the lower Court right to have affirmed the decision of the tribunal rejecting Exhibit P14 and P14A on the ground of same having been dumped on the trial tribunal?

4. Was the lower court right to have affirmed the decision of trial court that the petitioners did not establish that the 3rd, 5th, and 7th Respondents were not qualified to contest the Governorship Election of Abia State held on 18th March 2023.

Dr. Onyechi, Ikpeazu, SAN, leading the second Respondent’s lawyers, filed a brief on 30th December 2023 and distilled these issues:

1. Whether the Court of Appeal was correct to hold that the striking out of portions of the pleadings of the Appellant by the Tribunal was not fatal to the case of the Appellants, as it was not the basis on which the petition was dismissed.

2. Whether, having regard to the fact that the 1st, 6th, and 7th Respondents elicited evidence in cross-examination and the 1st Respondent additionally tendered Exhibits D1 and D2, the Court of Appeal was correct to hold that the 1st, 6th, and 7th Respondents did not abandon their pleadings.
3. Whether, having regard to the fact that Exhibits 14 and 14A were tendered from the Bar and that PW2 and PW3 who identified them did not adopt competent witness Statements, the Court of Appeal was correct to affirm the decision of the Tribunal to the effect that the Exhibits 14 and 14A were dumped on the Tribunal.
4. Whether having regard to pleadings and the evidence led, the Court of Appeal was correct to affirm the decision of the Tribunal to the effect that the Appellants failed to prove that the third, fifth, and seventh Respondents were not qualified to contest the election for the office of Governor of Abia State.

  A.J Owonikoko, SAN, with his team of Counsels for the 3rd Respondent, on 5/1/2024 filed his brief of argument and therein formulated these issues:

1. Having regard to the peculiar nature of the instant appeal, whether the lower court was not right when it struck out the four interlocutory appeals for want of utilitarian value in the larger scheme of the Appeal?

2. Was the lower court not right when it affirmed the trial Tribunal’s findings to the effect that the first, sixth, and seventh Respondents did not abandon their pleadings by not calling oral evidence, having elicited evidence in support of same, during the cross-examination of the Appellants’ and their respondents’ witnesses?

3. Having regard to the regime in appellate procedure, was the lower court not right to discountenance the Appellants’ argument bordering on the expunction of Exhibits P14 and P14A when no issue for determination was distilled from the grounds to which it relates in the Notice of Appeal at the lower court?

4. Whether the lower Court was not right when it held that the fifth Respondent was not a Public Officer within the meaning of section 318 of the 1999 constitution and settled decisions of this Honourable Court and therefore not in breach of section 182(I)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as altered)?

5. Whether the lower Court was not right when it upheld the Trial Tribunal’s finding to the effect that having regards to the pleadings of the appeillants at the Trial Tribunal, the case of non-qualification bordered on the internal affairs of a political party, which was ultra vires the jurisdiction of the tribunal and which was also not proven by the Appellants on the balance of probability of evidence before the tribunal?

 Prof. Paul Ananaba, SAN, with his legal representatives for the fourth and fifth Respondents nominated these issues in the brief prepared and filed on 6th January 2024:

1. Was the lower court’s treatment of Appellants’ appeal on the threshold issue of competence that it is, Locus Standi, correct?

2. Did the Court of Appeal rightly endorse the trial tribunals finding that the first, sixth and seventh Respondents did not abandon their pleadings by not calling evidence?

3. Did the Court of Appeal rightly endorse the trial tribunal’s rejection of Exhibits 14 and P14A on the grounds that these Exhibits P14 and P14A has been ‘dumped’ on the trial tribunal?
4. Was the Court of Appeal right to conclude that the Petitioners did not establish that the third, fifth, and seventh Respondents were not qualified to contest the election of 18 March 2023 under reference in this case?

  D.C Denwigwe, SAN, with his team representing the 6th Respondent, filed their brief of argument on 28/12/2023, wherein 3 issues were formulated thus:

1. Whether the Court of Appeal was right when it held that the Appellants lacked the Locus Standi to challenge the qualification of the seventh Respondent to contest the election and that the Appellant failed to prove non-qualification of the seventh Respondent?

1. Whether the Court of Appeal was right when it held that the sixth Respondent did not abandon its pleadings?
2. Whether the Court of Appeal rightly struck out the issue for determination on expunction of Exhibit P14 and P14A, as the issue raised had no anchor in the appeal?

      Nnamdi Ugochukwu Ahaaiwe, Esq., with his group of Counsels on behalf of the 7th Respondent filed a brief of argument on 8/1/2024 and formed these issues:

1. Whether the Court of Appeal was in error in holding that the claim by the Appellants that the 3rd, 5th, and 7th Respondents were not qualified to contest the questioned election lacked merit and dismissed it.

2. Whether the Court of Appeal was in error in holding that the 1st, 6th, and 7th Respondents did not abandon their pleadings at the Tribunal.

3. Whether the Court of Appeal was in error in not placing any weight or probative value in Exhibits P14 and P14A.

   In consequence to their briefs, the Appellants vide his  learned Counsel, filed separate reply briefs to their briefs on 8th and 9th January 2024 respectively.

RESOLUTION

   This Appeal is a Siamese twin with SC/CV/1250/2023 in every aspect. The issues and the parties are substantially same, save that the Appellants are selfishly, greedily, tangentially, and inconsiderately bent on having their way in by all means. Aside that the issues are repetitive, it is an abuse of court process to pursue and bird-dog such an academic appeal, that the outcome will have no utilitarian value to the Appellants nor any purpose to achieve in our electoral and democratic system. Besides, it is a concurrent decision that stands without any iota of perverseness in it.

The Appellants who came a distant fourth in the election with 24,091 votes out of 368,541 cast at the Abia State Governorship Election want a magic of disqualifying all the first three to make them the winners of the said election that held on 18th March 2024. There are actually no live issues left in the appeal that the Appellants are nagging this court with. This court, Per ABBA AJI, JSC considered what an academic and hypothetical appeal means, in APC V. ENWEREM & ORS ( PP. 23-24 PARAS. C):

 To consider a matter which has been overcome by events is to go into futility. This is what the court considers an academic appeal since no useful or future outcome can be obtained from it. A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to a party even if judgement is given in his favor. A suit is academic if it is not related to practical situation of human nature and humanity. Once a suit no longer has live issues for determination, such a suit is academic and a Court should on no account spend judicial time or engage in academic exercise. Courts are to determine live issues. See Per GALUMJE, JSC, in ANYANWU V. EZE & ORS (2019) LPELR – 48740 (SC) (PP. 8-9 PARAS. A). My learned brother declared in the lead judgment, “Granting the Appellant’s application to appeal against the judgment delivered in the absence of jurisdiction is unreasonable and confers no utilitarian value… enquiring into the correctness of the Court of Appeal’s decision is tantamount to a futile exercise of trying to draw water from an empty well.

  The lower court was equally exasperated and put out by the Appellants  appeal before it, that has annoyingly also came up to this honourable court when it is painfully observed that:

 This court must say that it is rather bewildered by this case. It is a huge joke and the Appellants and their handlers, their Counsel, must have confused the lower Court and this Court as jester’s arenas manned by clowns and comedians. Otherwise, how does one explain the temerity of the Appellants who scored 24,091 votes out of a total of 368,541 votes cast at election, that is 6.7% of the votes, approaching the lower Court and this Court to declare and return them as the winners of the election? And to, in doing so, disqualify the third Respondent who scored 175,467 votes, almost eight times his votes, the fifth Respondent who scored 88,529 votes, almost four times his votes, and the seventh Respondent who scored 28,972 votes, and to find and hold that they were the only ones qualified to contest in the election. The Appellants did not challenge the validity of the votes cast at the election. They accepted that they were roundly rejected by the electorate. Yet they wanted the lower Court and now this Court to declare them winners of the election. This can only happen in a comedy skit.

This appeal, therefore, is grossly unmeritorious and vexatious. It is hereby dismissed. This judgment abides, the one in SC/CV/1250/2023. I affirm the judgment of the lower court.

UWANI MUSA ABBA AJI

JUSTICE, SUPREME COURT

APPEARANCES:

ABUBAKAR MALAMI, SAN; WITH HIM TOCHUKWU D. MADUKA, SAN; UBONG ESOP AKPAN, ESQ; REMI AURE, ESQ; AND IDONGESIT EKPO, ESQ, FOR THE APPELLANTS.

J.O. ADESINA, SAN, FOR THE 1ST RESPONDENT; WITH HIM, DR. NASIRU TIJJANI, ESQ; S.G. UDOH, ESQ AND W.O. EKOHVBIYI, ESQ.

 TOCHUKWU KENECHUKWU NWEKE, ESQ, FOR THE 2ND RESPONDENT; WITH HIM, DR OBINNA ONYA, ESQ AND JULIUS MBA, ESQ.

OMOSANYA POPOOLA, ESQ, FOR THE 3RD RESPONDENT; WITH HIM, T.C OYEDEJI, ESQ AND M.K FIDELIS, ESQ.

UDOCHI IHEANACHO, ESQ, FOR THE 4TH AND 5TH RESPONDENTS; WITH HIM, CHUKWUEMEKA NWAOGU, ESQ; EMEKA EZE, ESQ; CHIJIOKE NWOGU, ESQ AND CHIKODI OKEOJI.

C.N NWIGWE, ESQ; WITH HIM, ADEBIMPE OREKOYA, ESQ, FOR THE 6TH RESPONDENT.

NNAMDI N. AHAAIWE, ESQ, FOR THE 7TH RESPONDENT; WITH HIM, OGOCHUKWU N. OFOR, ESQ AND OBINNA C. OCHIOBI, ESQ.